Kodakan Pillai v. Mudanayake
[In The Privy Council]
1953 Present: Lord Normand, Lord Oaksey, Lord Tucker, Lord Asquithof Bishopstone and Lord CohenG. S. N. KODAKAN PILLAI, Appellant, and P. B. MUDANAYAKEet al., Respondents
Privy Council Appeal No. 7 op 1952S. C. 368—Application for Writ of Certiorari
Citizenship Act, No. IS of 1948, ss. 4 and 5—Parliamentary Elections Amendment Act,No. 48 of 1949, s. 3, amending Parliamentary Elections Order in Council, 1946,s. 4 (1) (a)—Discriminatory legislation f—Constitution Order in Council, 1946,s. 29 (2) (6)—Indian and Pakistani Residents (Citizenship) Act, No. 3 of 1949—Judicial notice of reports of Parliamentary Commissions—Maxim Omniapraesumuntur rite esse aota—Applicability to Act of a legislature.
Seotions 4 and 5 of the Citizenship Act, No. 18 of 1948, and section 3 of theParliamentary Elections Amendment Act, No. 48 of 1949, which amendssection 4(1) (a) of the Parliamentary Elections Order in Council, 1946, constitutelegislation on citizenship and cannot be said to be legislation making personsof the Indian Tamil community liable to a disability to whioh persons ofother communities are not made liable. They do not, therefore, offend againstsection 29 (2) (b) of the Constitution Order-in-Council, 1946.
Judicial notice may be taken of such matters as the reports of ParliamentaryCommissions and of such other facts as must be assumed to have been withinthe contemplation of the legislature when the Citizenship Act and theParliamentary Elections Amendment Aot were passed.
There may be circumstances in whioh legislation though framed so as not tooffend directly against a constitutional limitation of the power of the legislaturemay indirectly achieve the same result. In such circumstances, the legislationwould be ultra vires.
The maxim omnia praesumuntur rite esse acta is as applicable to the Aot of alegislature as to any other acts and the court will not be astute to attributeto the legislature motives or purposes or objects which are beyond its power.It must be shown affirmatively by the party challenging a Statute, which isupon its face intra vires, that it was enacted as part of a plan to effect indirectlysomething which the legislature had no power to achieve directly.
j^^.PPEAL from a judgment of the Supreme Court reported in (1951)53 N. L.R. 25.
D. N. Pritt, Q.C., with Frank Gahan, Q.C., S. Canaga/rayer andSirimevwn Amerasinghe, for the appellant.
Sir Hartley Shawcross, Q.C., with Sir Frank Soskice, Q.C., DingleFoot, Walter Jayawardene and Biden Ashbrooke, for the second respondent(Commissioner of Elections).
. N. B 28327-1.692 (4/53)
Cur. adv. mitt.
LOUD OAKSEY.—XCodakan JPillai v. Mudanayake
May 11, 1953.[Delivered by Lord Oarsey]—
This is an appeal from the judgment of the Supreme Court of Ceylondated the 28th day of September, 1951, granting a Mandate in the natureof a Writ of Certiorari quashing an order made by the second respondentdated the 2nd July, 1951, that the appellant’s name be included in theRegister of electors for the Electoral District 84, Ruwanwella, for theyear 1950.
The issue for determination in this appeal is whether the SupremeCourt of Ceylon were right in holding that sections 4 and 5 of the Citizen-ship Act, No. 18 of 1948 (hereinafter referred to as the Citizenship Act),and section 4 (1) (a) of the Ceylon (Parliamentary Elections) AmendmentAct, No. 48 of 1949 (hereinafter referred to as the Franchise Act) werevalid or whether as contended on behalf of the appellant and as held bythe third respondent (hereinafter referred to as the Revising Officer),these sections were made in contravention of section 29 (2) of the Ceylon(Constitution and Independence) Orders in Council, 1946 and 1947.
It is convenient to set out here the provisions of section 29 of theConstitution Order-in-Couneil, sections 4 and 5 of the Citizenship Act andsection 4 (1) (a) of the Franchise Act.
Ceylon (Constitution and Independence) Order-in-Council, 1946, asamended :—.
“ 29. (1) Subject to the provisions of the Order, Parliament shallhave power to make laws for the peace, order and good governmentof the Island.
No such law shall—-
prohibit or restrict the free exercise of any religion ; or
make persons of any community or religion liable to disabilities
or restrictions to which persons of other communities orreligions are not made liable ; or
confer on persons of any community or religion any privilege or
advantage which is not conferred on persons of other commu-.nities or religions ; or
alter the constitution of any religious body except with the
consent of the governing authority of that body : Providedthat, in any case where a religious body is incorporated bylaw,no such alteration shall be made except at the request of thegoverning authority of that body.
Any law made in contravention of sub-section (2) of this sectionshall, to the extent of such contravention, be void. ”
Citizenship Act, 1948.'
“ (4.) (l) Subject to the other provisions of this Part a person bornin Ceylon before the appointed date shall have the status of a citizenof Ceylon by descent if—
(а)his father was bom in Ceylon, or
(б)his paternal grandfather and paternal great grandfather were
bom in Ceylon.
LORD OAKSEY.—Kodakan JPillai v. Mudanayake
(2) Subject to the other provisions of this Part a person bom out-side Ceylon before the appointed date shall have the status of acitizen of Ceylon by descent if—
his father and paternal grandfather were bom in Ceylon ;
his paternal grandfather and paternal great grandfather were
bom in Ceylon.
(1) Subject to the other provisions of this Part a person bomin Ceylon on or after the appointed date shall have the status of acitizen of Ceylon by descent if at the time of his birth his father is acitizen of Ceylon.*•
(2) Subject to the other provisions of this Part, a person born out-side Ceylon on or after the appointed date shall have the status of acitizen of Ceylon by descent if at the time of his birth his father is acitizen of Ceylon and if, within one year from the date of birth,the birth is registered in the prescribed manner—
at the office of a consular officer of Ceylon in the country
of birth, or
where there is no such officer, at the appropriate embassy
or consulate in that country or at the office of the Minister inCeylon. ”
The Franchise Act as amended in 1950 reads as follows :—
“ (4) (1) no person shall be qualified to have his name entered orretained in any register of electors in any year if suchperson—
is not a citizen of Ceylon, or if he is by virtue of hisown act, under any acknowledgment of allegiance,obedience or adherence to any foreign Power or Statewhich is not a member of the Commonwealth ; ”
On the 22nd January, 1951, the appellant filed a claim in the prescribedform pursuant to the Ceylon (Parliamentary Elections) Order-in-Council,1946, to have his name inserted in or retained on the register of electorsfor the Ruwanwella electoral district. In a letter annexed to his claimhe averred that he was a resident in the said electoral district and hadbeen so resident for a continuous period of over six months in the 18months immediately prior to the 1st June, 1950 ; that he was, and hadat the relevant period been, a British subject ; that he was in no waydisqualified to be an elector ; and that his name had been included in theregister prepared in the year 1949. His letter also included the followingpassages:—
“9. I claim that the alternatives in the qualification to be an elector
effected by Act 48 of 1949 are not valid and are of no effect in
law inasmuch as the said Act was ultra vires the Legislature.
LORD OAKSEY.—Kodahan Pillai v. M-udanayake
X claim that the qualifications to he an elector should bedetermined according to the Ceylon (Parliamentary Elections)Order-in-Council, 1946, without the same being modified oramended by Act 48 of 1949. According to the said Order-inCouncil as unamended by the said Act 48 of 1949 I am qualifiedto be an elector. ”
On the 26th February, 1951, the first respondent as Assistant Register-ing Officer held an inquiry into the appellant’s claim at which the appel-lant gave oral evidence. In answer to the first respondent he stated(inter alia) as follows :—
“ I was bom in British India. Both my parents and all my otherrelations were bom in British India. All my wife’s relations are inIndia except my brother-in-law who lives with me. I have not soughtregistration under the Citizenship Act, No. 18 of 1948, or under theIndian and Pakistani Residents Citizenship Act, No. 3 of 1949. I donot own any property in India …. I do not own any property
in Ceylon either.”
At the end of the inquiry the first respondent made the followingorder :—
“ I have rejected this claim as the claimant is not a citizen of Ceylon
within the meaning of the Citizenship Act, No. 18 of 1948
I accept the statements of fact made by the claimant before me at thisinquiry.”
On the 8th March, 1951, the appellant filed a petition of appeal to theRevising Officer praying that the order of the Registering Officer be setaside and that the appellant’s name be included in the register ofelectors.
By am affidavit dated the 15th May, 1951, the appellant deposed(inter alia) as follows :—
“ 9. The vast majority of the present Indian Immigrant popula-tion came to Ceylon long after the year 1852 and though a large numberof the members of the Community have been bom in Ceylon yet theirparents were not born in Ceylon. In the case of the IndianCommunity unlike in the case of the Singhalese and Ceylon TamilCommunities, the fathers of the persons who belong to thiscommunity have not been bom in Ceylon as Immigration of IndianLabour commenced only in 1852. Hence the Ceylon Citizenship Actwhile it confers the status of a Ceylon Citizen on all members of theSinghalese and Ceylon Tamil Communities fails to confer tha/ statuson by far the vast majority of the members of the Indian Communitysettled in Ceylon.”
The Revising Officer held an inquiry on the 16th, 29th and 30th May,1951, at which the appellant was represented by Mr. Advocate Nadesanand Mr. Advocate Kanagarayar and the second respondent by the
LORD OAKSET.—Kotlalcnn Pillni i>. JIudanaynkc
Attorney-General and Mr. Walter Jayawardene, Crown Counsel. On the16th May Mr. Advocate Nadesan moved to file the appellant’s aforesaidaffidavit dated the 15th May, 1951. The Attorney-General objectedinter alia to paragraph 9 thereof. He raised, however, no objection to theaffidavit being filed provided that, if in the course of the argumentit became necessary for him either to lead evidence or to file a counter-affidavit he should be allowed to do so. Mr. Advocate Nadesan had noobjection and the Revising Officer accordingly admitted the affidavitsubject to those conditions. Mr. Advocate Nadesan stated that he didnot propose to call any evidence at this stage of the inquiry, and thatit would be a matter of legal argument. No further evidence was called.
At the resumed hearing on the 29th May, the Attorney-General tenderedan affidavit dated the 28th May, 1951, sworn by the Registering Officerfor the Ruwanwella Electoral Bistrict but did not contradict theallegations of paragraph 9 of the appellant’s affidavit.
On the 2nd July, 1951, the Revising Officer gave judgment holding theActs in question ultra vires on the ground that the Citizenship Act was inno true sense legislation to create the status of Citizenship but was with theFranchise Act part of a legislative plan to reduce the electoral power ofthe Indian community.
On the 16th July the Attorney-General applied to the Supreme Courtof Ceylon for a mandate in the nature of a Writ of Certiorari quashingthe decision of the Revising Officer.
The appellant tendered three affidavits sworn on the 21st August, 1951,which purported to deal (inter alia) with the history of Indian immigra-tion into Ceylon and the position of Indian residents under the CitizenshipAct and the Franchise Act but these affidavits were not admitted bj* theSupreme Court.
The Supreme Court of Ceylon unanimously granted the application forcertiorari and quashed the order of the Revising Officer holding firstlythat the evidence tendered to them ought not to be admitted and in anyevent was irrelevant; secondly that a Court should not search amongState papers and other political documents for the substance or the truenature and character of an 'impugned statute without permitting thelanguage of the Statute to speak for itself where such language is clearand unambiguous ; and thirdly that the Statutes in question do notupon their faces make the Indian Tamil community liable to anydisability to which other communities are not liable.
At their Lordships’ Board it was contended on behalf of the appellantthat the Citizenship Act and the Franchise Act make persons of the IndianTamil Community of which the appellant is a member liable to a disabilityor restriction within the meaning of section 29 (2) (b) of the ConstitutionOrder-in-Council and are therefore ultra vires._
It was conceded for the appellant that these Acts do not upon theirfaces discriminate against the Indian Tamil Community but it was arguedthat they indirectly have that effect since on the evidence before theCourt and as was conceded by the Attorney-General a large number ofIndian Tamils cannot become citizens of Ceylon because neither their2*3. N. B 26327 (4/53)
LORD OAKSEY.—ILodalcan JPillai v. Mudana.yalce
fathers nor their grandfathers were born in Ceylon. It was further arguedfor the appellant that the Acts were what was called colourable and thatthey disclose when their pith and substance or their true character isascertained the intention of the legislature to do indirectly what admittedlyit cannot do directly, namely to make persons of the Indian Tamil Com-munity liable to a disability to which persons of other communities arenot made liable.
The appellant’s counsel at first submitted that further evidence oughtto be admitted as to the effect of the Acts upon the Indian Tamil Com-munity but in reply he expressly withdrew his application to introducefurther evidence and no further evidence was referred to.
In these circumstances and in view of the admission before the Re-vising Officer of the affidavit of the appellant dated the 15th May, 1951,without objection their Lordships do not find it necessary to decide if andhow far evidence is admissible of facts which go to show the actual effectof an Act after it has been passed. It was common ground between theparties and is in their Lordships’ opinion the correct view that judicialnotice ought to be taken of such matters as the reports of ParliamentaryCommissions and of such other facts as must be assumed to have beenwithin the contemplation of the legislature when the Acts in questionwere passed (cf. Ladore v. Bennett3) and both parties have referred theirLordships to a number of paragraphs in the report of the SoulburyCommission of 1945.
With much of the reasoning of the Supreme Court of Ceylon theirLordships find themselves in entire agreement but they are of opinionthat there Tmay be circumstances in which legislation though framedso as not to offend directly against a constitutional limitation of the powerof the legislature may indirectly achieve the same result, and that in suchcircumstances the legislation would be ultra vires.
The principle that a legislature cannot do indirectly what it cannot dodirectly has always been recognized by their Lordships’ Board and alegislature must of course be assumed to intend the necessary effect of itsstatutes. But the maxim omnia praesumuntur rite esse acta is at leastas applicable to the Act of a legislature as to any other acts and the Courtwill not be astute to attribute to any legislature motives or purposes orobjects which are beyond its power. It must be shown affirmatively bythe party challenging a Statute which is upon its face intra vires that it wasenacted as part of a plan to effect indirectly something which thelegislature had no power to achieve directly.
It was argued that sections 4 and 5 of the Citizenship Act made itimpossible that the descendants however remote of a person who wasunable to attain citizenship himself could ever be able to attain citizenshipin Ceylon no matter how long they resided there, but their Lordships’attention was subsequently drawn to the Indian and Pakistani Residents(Citizenship) Act, No. 3 of 1949, by which an Indian Tamil could by anapplication obtain citizenship by registration and thus protect hisdescendants, provided he had a certain residential qualification.
(,1939) A. G. 468 p. 477.
LORD OAKSEY.—Koddkan Pillai v. Mudanayake
It was suggested on behalf of the appellant that this Act might itselfbe ultra vires as conferring a privilege upon Indian Tamils within section29 (2) (c) of the Constitution Order-in-Council and that therefore it wasinadmissible to rebut the inference that the legislature had intended by theCitizenship and Franchise Acts to make Indian Tamils liable to dis-abilities within the meaning of section 29 (2) (6) but their Lordshipscannot accept this argument. If there was a legislative plan the planmust be looked at as a whole and when so looked at it is evident in theirLordships’ opinion that the legislature did not intend to prevent IndianTamils from attaining citizenship provided that they were sufficientlyconnected with the island.
The cases which have been decided upon the British North AmericaAct, 1867, and the Australian Constitution have laid down the principlewhich their Lordships think is applicable to the present case although it istrue that in those cases the question was as to the construction of legis-lative subjects assigned to the Dominion or Commonwealth Parliamentson the one hand and to the legislatures of the Provinces or States on theother, whereas in the present case the question is as to the construction ofa constitutional limitation upon the general sovereign power of the Ceylonlegislature to legislate for the peace, order and good government of Ceylon.But in their Lordships’ opinion the question for decision in all these casesis in reality the same, namely, what is the pith and substance as it has beencalled or what is the true character of the legislation which is challenged(see Attorney-General for Ontario v. Reciprocal Insurers1 ; and PrafullaKumar v. Bank of Commerce Khulna 2).
Is it in the present case legislation on citizenship or is it legislationintended to make and making Indian Tamils liable to disabilities to whichother communities are not liable ? It is as the Supreme Court observed aperfectly natural and legitimate function of the legislature of a countryto determine the composition of its nationals. Standards of literacy, ofproperty, of birth or of residence are as it seems to their Lordshipsstandards which a legislature may think it right to adopt in legislation oncitizenship and it is clear that such standards though they may operateto exclude the illiterate, the poor and the immigrant to a greater degreethan they exclude other people do not create disabilities in a communityas such since the community is not bound together as a community byits illiteracy, its poverty or its migratory character but by its re ce or itsreligion. The migratory habits of the Indian Tamils (see paragraphs123 and 203 Soulbury Report) are facts which in their Lordships’ opinionare directly relevant to the question of their suitability as citizens ofCeylon and have nothing to do with them as a community.
For all these reasons their Lordships have come to the conclusionthat tile Citizenship and Franchise Acts are intra vires of the Ceylonlegislature and they therefore humbly advise Her Majesty that this appealought to be dismissed. The appellant must pay the costs of the appeal.
1(1924) A. C. 328-337.
» (1947) 34 A. I. R. (P. O.) 69.
G. S. N. KODAKAN PILLAI , Appellant , and P. B . MUDANAYAAKE et al Respondent
Kodakan Pillai v. Mudanayake